Inheritance Litigation

In a 5-4 decision the Court ruled that the Texas Probate Court and not a bankruptcy Court had the jurisdiction to make the decision. This is a blow to the heirs of Anna Nicole Smith and should result in her not receiving any further inheritance unless they find a different ground to apply on.

Hollywood California Actor Jackie Cooper started acting at the age of 3 and was nominated for a best actor in a leading role at the age of 9 the youngest in any category for 50 years. He then went on to work in the entertainment field for over 60 years including the role of Perry White the editor of the newspaper in Superman.

When he prepared his will having been married 3 times and having a child from a prior marriage and 3 from his current wife he wanted to make sure that there was no Probate Litigation, disputes or other contesting of his wishes and that the property just passed to his wife for her life then to the children. As a result he provided in his will that if anyone named in the will sought to contest its terms unsuccessfully that they would only receive $5. His phrasing was "I give to such persons so contesting or objecting the sum of FIVE DOLLARS ($5.00) and no more."

Interesting to note that while no contest clauses had been valid and all types of no contest clauses had been enforeceable in California for a while the law permitting this was changed effective January 1 2010 with when new Probate statute §§ 21310–21315 was passed and signed into law repealing the prior statute. There are now restrictions regarding what types and situations a no contest clause is enforceable. Also his wife failed to survive him so it now passes all to his children in equal shares.

In Florida where the Probate Attorney Blog is written the law is and has been that no contest clauses are specifically uneforceable by statute as against public policy. Florida Statute 732.517 states

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.

The Personal Representatives of Michael Jackson's estate reached a settlement today with the Heal the World Foundation over use of the late entertainer's image and likeness, a court official confirmed.

Attorneys representing the estate and the charity met with a U.S. District Judge just prior to jury selection in the copyright infringement lawsuit was going to start in Los Angeles federal court.

Terms of the settlement were not publicly released. But TMZ.com reported that the founder of the foundation Melissa Johnson was given the right to use the late singer's name and image in association with the charity, while Katherine Jackson, Michael's mom, has become a member of the board of directors to supervise the nonprofit's work.

The litigation complaint filed in court stated that Johnson registered the names or phrases "Michael Jackson,' "King of Pop,' "Thriller,' "Neverland' and other words or phrases with the U.S. Patent and Trademark Office.

Those applications, according to the lawsuit, "uniquely and unmistakably point to Mr. Jackson and his persona' and are intended "to cause confusion, mistake and to deceive' the public into believing Johnson's charity has some connection to the pop star.

Attorney John Branca, a personal representative of Jackson's estate, previously said the estate sued in an effort "to be vigilant in protecting Michael's legacy from unauthorized exploitation and in protecting Michael's fans from being deceived.'

While Jackson did launch his own Heal the World Foundation in 1992, it had no connection to Johnson's organization and became dormant before the singer died of an overdose of prescription drugs in June 2009 at age 50, according to the complaint.

Johnson's foundation is described on its website as "a universal charity organization designed to improve the condition of all mankind.'

Attorney Branca is one of the top entertainment attorneys in the country and helped Michael Jackson purchase the Beatles catalog of publishing rights it owns with Sony which is likely the most valuable asset of the estate.

TMZ reports that she had filed a claim for over $45 million which the court rejected but indicated their child will be provided for and she could seek some money if she showed that some property was hers and provided documentation but they checked a box saying they agreed to give her $0 and rejected over $45m. Shortly prior to his passing and since the estate and he have had disputes with her regarding a number of issues and estate litigation and probate disputes are likely going to continue for a while.

Malcolm Mclaren died in April of 2010. He had been the manager of the punk / alternative rock group the Sex Pistols and other bands, a performer, and businessman in the United Kingdom where he will be buried.

He had a rocky and relatively absent relationship from his son Joe Corre although Joe was at his side upon his passing. Joe was not even given his name as he was unwanted and Joe's mom was told to have an abortion since Malcom did not want to be a father or think he would be a good one and his mother did not care for Viviene Westwood who would become a punk fashion designer and businesswoman and gave her money to abort who changed her mind on the way there then they named the child after his mother as a joke.

For most of their lives they did not have much to do with one another according to articles although at times that changed.

Malcom was in his 60s and had a girlfriend who was in her 30s that he was with for 12 years and lived with for 9. He did a deathbed will to provide for her. However his mental capacity while he was in the hospital dying of cancer was questionable and he had no prior wills so if that will was the product of undue influence it would pass intestacy which meant the girlfriend would receive nothing in his sole name without a beneficiary designation and it would pass to his son regardless of his intent.

Joe Corre is a millionaire himself having been a part founder of agent provocateur a lingerie company but said he felt an obligation to bring the will contest and make it known whether his dad had capacity at the time the will was made. He said he was also acting on behalf of Malcom's brother who was also interested.

A will can leave a persons property to anybody they want for any reason they want. However the person who makes the will must be of legal age being 18 or an emancipated minor, have the document properly executed for example 2 witnesses and a notary with the testator signing then the others watching them do so and being there and each paying attention to the others signing and witnessing. They must also be free of undue influence where another pressures them to make provisions they would not have otherwise have done and have mental capacity.

While mental capacity also known as testamentary capacity is a reasonably low standard the will can be successful. The person must know who the natural object of their bounty are (their heirs such as their children) the approximate or general extent of the property in their estate not thinking they have $10 if they are a millionaire, able to understand their actions and its effect on their estate plan and related issues.

While this case is outside the US the lesson is the same as if it would be in Florida that people should designate who they want to receive their property and if they do not have beneficiary designations hold property jointly with right of survivorship or provide early enough in their wills when they clearly have capacity it allow an opening for others to challenge the capacity and validity of the will. The state or country will decide who gets his property through intestacy if it is determined that there was no capacity.

TMZ.com reported tonight that David Beresford-Redman has petitioned the probate court to open the probate case and validate the will of his murdered daughter-in-law.

The probate petitioner his son Bruce Beresford-Redman is now charged with the murder of Monica -- is named in Monica's 2008 will as an executor of her estate also known as the personal representative of her probate estate.

Monica's sisters have said they will challenge the validity of the will.

Under the will, David and his wife Juanita would inherit Monica's interest in a house she owns. The remaining property goes to Bruce.

As previously reported by Probate Attorney Blog.com in Florida if a person is merely proved to have more likely than not intentionally and unlawfully brought about the death of another they are unable to inherit anything from the estate. However in California where the will contest is going to occur and the probate case was filed in the LA Superior Court Probate Division the standard is higher and requires a felony so there likely needs to be a conviction although it appears that the sisters are going to seek to contest the provisions going to the father as well or his being personal representative. As far as personal representative the position may be to argue whether he could be fair and impartial as the son is the primary beneficiary currently but that will be challenged but the provisions to him should pass to him unless either he was involved with the murder in some way which seems highly unlikely or there is another legal claim. She had mental capacity though and undue influence is not often made for a case of a woman of her age. While the evidence has appeared to show that the son likely did murder her and he will not receive his share if that is proven to be the case while the writer of this blog is a Florida Probate Attorney and not licensed to practice law in California most slayer statutes do not bar relatives of the slayer who are named in the document and had nothing to do with the wrongful act from inheriting so it will be interesting to see what the legal arguments are in this case. The father had told the children that their mom died in a car crash when they got them as temporary guardians instead of telling them the truth than barred them from going to the funeral and there is likely to also be continuing guardianship litigation regarding who gets the children and what is in their best interests given how their mom passed.

TMZ.com reported today that the actor John Wayne's family is battling over the millions in his estate. His daughter Aissa Wayne wants to sell her share of the estate and another child Ethan Wayne will buy her out but needs to come up with a fair market price to do so. They are unable to agree on what that is.

He says $10,704,000 while she says 15,400,000. The case is being heard in LA County Superior Court.

There have been quite a few celebrity Probate Litigation, Will Contests, and Trust Disputes recently in the LA County Superior Court Probate Division.

When Anna Nicole Smith died in Hollywood Florida in February of 2007 and the highly publicized funeral trial was presided over by Broward County Probate Judge at the time Larry Seidlin it was believed that her daughter and sole beneficiary of her estate would be a multi millionaire. Anna Nicole had been awarded multi millions in a long running trust and estate litigation through probate and several other courts since the passing of her billionaire elderly deceased husband. However as the most recent court held that her estate would not get a penny from that probate dispute and the trust and estate litigation would end with a total loss for her estate her daughters father now is selling some of her property to provide for her financial security in the future. He points out that they have enough to get by on but that she needs private schools, extra security and has other expenses beyond a typical child so he is seeking to get additional money to set aside in a trust for their child. Also some of it will go to charity which she set up after her son passed away.

The ABC news article about what Larry Birkhead is doing to provide for their daughter (and charity) following the Estate Litigation defeat click here.

Melvin Simon was around the top 300 richest people in the Forbes 400 (# 278 when he was 79 years old). He died around 82 years of age. His estate was worth around $1.3 billion dollars.

Dana Hunsinger of the Indystar.com provided an update of the probate and trust litigation. The judge dismissed part of the case in which his daughter Deborah Simon stated fraud as the claim but was not specific enough in nature. It is allowed it to be refiled. The Probate court Judge failed to dismiss the estate dispute claims against her stepmom Bren Simon which argued undue influence and lack of mental capacity.

While I am not familar with Indiana Probate case law or statutes in Florida can't really merely rely on presumptions to prove an undue influence case against a spouse however she appears to be seeking to prove it directly and using evidence of lack of capacity or diminished capacity.

She indicates that not only were the documents changed just months before he died and was a significant change from prior wills which then gave her stepmom hundreds of millions more while vastly reducing what was going to charity or to herself and her siblings she also indicated that her father Billionaire Mel Simon was suffering from significant neurological problems at the time which impaired his memory, understanding and communication. It is undisputed that he had difficulty even signing the documents although his spouse Bren says that is from Parkinsons and that he signed freely, voluntarily and knowingly.

As I tell clients who inquire about Florida Probate Litigation Information a person can leave there property to anybody they want for any reason they want. However, that is subject to them having mental capacity and there not being evidence of undue influence that they were coerced into doing so and the result was the other persons influence and not their own. The article does not provide many details of undue influence although based on the time line and the capacity issue along with the large change in disposition it seems questionable that he even formed an intent to change the document and undue influence is often combined with diminished capacity which was clearly present here so this will be an interest case to see where it goes. When discussing a potential challenge to contest a will or trust and dispute the intent I do like to see some of the facts that Deborah appears to have here he had a previous plan which she was provided significantly more for, then there is the alegation of significant neuroglogical problems and he was not even able to sign and he was somewhat elderly as well as died just months after signing the document so the timeline looks good. The facts will need to be established to prove the case though was it his intent to provide more for his spouse and did he know what he was doing and act voluntarily will ultimately decide the issue. However with this much money involved and a reasonably good timeline but with it being the spouse and difficult to win unless they can do so on the capacity issue or have direct facts proving undue influence they should settle it would seem in both sides best interests. While sometimes principle is important and it may be worth fighting until the end in a case like this both sides can be sufficiently provided for in a settlement and factoring in the time and saved expense in court costs and attorneys fees it may be a smart move. Anna Nicole Smith estate suing the estate of her deceased billionaire husband and opposed by the estate of his son shows how extended cases of this size can become if each side has a fight to the death mentality. All the initial participants literally did in that case and it is still going on after 15+ years and numerous appearances in multiple different types of courts. She has been awarded $474.5 million around around 89 million and most recently nothing but her side has said they may seek to be heard a second time by the US Supreme Court on a different issue.

On a final note back to the Melvin Simon case it is best that his daughter brings the challenge regarding lack of capacity or diminished capacity and potential undue influence since frequently talking with and seeing her father she could likely present any facts which existed to the court more easily than a charity who may not have had much contact with him. However if a representative of the charity were to know of his condition at the time of execution and chose to join the suit they would be an interested party given the millions of dollars less they would be receiving under the revised will and trust.

As Philip Bernstein who writes the New York Probate Litigation Blog pointed out in a post which can be viewed here. While the death certificate is evidence of death collateral evidence which conflicts with the death certificate can be challenged. In a New York case it was established to the court that while the death certificate did not provide that the decedent was married and had in fact been married and divorced subsequent to a prior marriage there had never been a divorce obtained and therefore the decedent was still married and would have the rights of a spouse.

This issue has arisen in Florida Probate disputes as well where the absence of a divorce is proven under similar facts. Given the rights of a spouse through an intestate share as well as elective share it is important to make sure that a proper divorce is followed through with or despite the intent of the decedent or lack of relationship for decades the law provides certain rights for that individual as a spouse.

On a related topic not addressed by the case but which has arisen is where a couple separates and dislikes one another with no intent of ever getting back together and at times decades go by without contact but then contrary to the intent of the decedent that individual still has all the rights of a wife absent a binding agreement to the contrary or divorce.

One additional related point is that if there is a subsequent divorce then all the financial provisions in the will are void absent a contrary intent. Florida Statute 732.507 provides that and can be seen here. Florida Trust Law has a similar provision. However transfer on death designations and insurance policies or contractual transfers are not automatically voided by a divorce and should be remembered to be changed upon a change in relationship and/or specifically changed in the divorce agreement. Upon divorce in Florida the court will look to provide an equitable distribution as provided by Florida statutes here.

Her Estate lost the latest round in the probate and trust fight but the estate dispute may continue as her probate litigation attorneys have said they may appeal back to the US Supreme Court on a different issue than was heard in 2006.

A federal Judge has denied the estate of Anna Nicole Smith $300 she claimed her ex husband who died at the age of 90 an oil billionaire had promised her. J. Howard Marshall who had a $1.6 billion dollar estate and gave her millions in gifts during his lifetime has been contested for 15 years. The trust and estate litigation has been disputed by each side in probate court, bankruptcy court, the Supreme Court and numerous venues with a series of conflicting results with a bankruptcy court awarding as much as $474.5 million another court cutting it back to $89.5 million.

The federal judge essentially determined they had been wasting their time the past decade. He cited that a 2001 Texas jury verdict said that the money was not intended as a gift and there was no undue influence or fraud. During that court fight as both parties were present and had the opportunity to present their case then the jury spoke the district court should have held to the findings of the Texas Probate Court and that should have precluded other courts (such as the bankruptcy speaking to the factual findings or legal conclusions). Although the bankruptcy court had made their ruling first in 2000 and Anna Nicole's attorney sought to argue federal court should therefore control the courts found the case was initially in probate court and their was a full trial at the probate court level and the bankruptcy decision did not have jurisdiction but was merely an advisory opinion.

In 2002 a district court cut back the 2000 bankruptcy verdict in favor of Anna Nicole but this federal court ruled that given the 2001 probate court case the 2002 judge should have dismissed the case instead of merely cutting the amount to $89.5 million.

His family said that lies about E Pierce Marshall have finally been put to rest.

In 2006 the US Supreme Court had ordered a federal appeals court to reconsider its ruling against Smith.

It is an important decision from a jurisdictional issue. Had the bankruptcy court been able to prevail and take precedence over the probate court it would have provided a 2nd chance to rush off to another venue when it appeared a case was going poorly and create jurisdiction shopping. Here there was already a probate case going but then she went to a different jurisdiction and was able to get them to take the case on different grounds of a supposed bankruptcy but essentially just a tactic to retry the case in a different context and court. This decision sends the message to determine facts regarding the probate and trust issues in the probate court and to then go with the factual finds of that court and not drag it through to numerous other types of courts to get another shot on the same factual determinations.

Anna Nicole was 26 when she married the 89 year old J. Howard Marshall who was 89 after meeting her a couple years earlier when she was a stripper. They were married for only 14 months.

One of her attorneys Howard Stern who was also a past boyfriend was to be paid a contingency fee and will now also receive nothing absent another reversal. She had been his only client and he had made no money for years as mentioned during her estate. At this point the son of J. Howard Marshall who was initially litigating against Anna Nicole died and his estate continued to fight then she did as well and even her son died so the only heir was her daughter who is a minor but she will receive nothing based on the decision. The son's family hopes this finally concludes 15 years of disputes regarding the estate. It has been an interesting case to follow for jurisdictional and other reasons. An article discussing his not receiving anything can be found here.

As Clarke Canfield of AP reported Maine's Supreme Court upheld the adoption of a woman who is seeking to make a claim to an inheritance of the father of her former lesbian partner. They overturned a 2008 decision from a lower court which overturned the decision.

43 year old Olive Watson adopted 42 year old partner Patricia Spado in 1991 in Maine where they merely spent some weeks at during the summers but were not residents of. This was done since Olive Watson's father Thomas Watson Jr. who built IBM into a multi billion dollar computer company thereby earning a fortune himself in the process. His dad was the initial president of IBM and he took over and ran the company 1952-1971 but prior to his leadership they had not shipped a single computer. As a result of his leadership and he was named by Time Magazine as one of the 100 most influential men of the 20th century.

His daughter adopting her partner as her daughter established that she was the grandchild of her father. They never told the father about the adoption or disclosed their relationship to the court. The relationship ended a year after the adoption but for some reason she did not seek to annul it then and still did not let her father know about it.

The following year her father died in 1993 unaware of the adoption or having an additional grandchild. He had prepared a trust that provided upon the death of himself and his spouse grandchildren would be entitled to cash payments at age 35. The spouse died in 2004. Her fathers other beneficiaries or heirs challenged the adoption in 2005 in Maine since they did not comply with residency requirements which were part of the law at the time of the challenge and arguing a fraud on the court in not disclosing the relationship they had and the relationship being formed not to be mother daughter but to provide an inheritance.

The Maine Probate Court Judge who granted the adoption in 1991 annulled it in 2008 on the residency issue. It was then appealed and the Maine Supreme Court ruled that it did comply with the residency requirement at the time of the adoption. The court further held that there was insufficient evidence of fraud and that historically adult adoptions had been allowed in order to convey inheritance rights, provide perpetual care to a disabled adult adoptee or formalize an existing parent-child relationship and not merely for the last reason.

The Court was also addressing arguments of the Trustees who were seeking to dispute the adoption since it was a sham inventing inheritance rights instead of seeking a traditional parent child relationship and the father did not know about it. The trust litigation issue will now continue as the father died in Connecticut and the attorneys for the trustees and lawyers for the adopted child will argue regarding whether she should be entitled to her share. While she is not specifically named in the trust it does say all grandchildren will receive a cash payout at 35 and as an adopted child of her ex partner who was her daughter she legally is his grandchild and is thus arguably entitled to the cash payout.

The case will now move to CT probate court to determine if Spado is entitled to any of the vast trust and estate fortune. Michael Koskoff the lead trust litigation attorney in the Connecticut case said "now the fireworks will start".

Florida is one of just two states in the country which does not allow gay people to adopt. This is a disputed issue now with groups seeking to contest this and allow everyone to adopt and raise a family. Florida adoption law however like that of Maine allows for adults to adopt other adults and there is no age or other restrictions. The Florida Adoption Statute can be read by clicking here. When adoption is intended to be that of a parent and child relationship it seems bizarre that anybody could adopt anybody even a 40 or 50 year old competent and healthy individual being adopted by another of the same age. Given this Maine case illustrating the pitfalls of adoption in these circumstances and the additional trust litigation or estate litigation that can occur as a result those who believe in gay adoption may wish to change the statute in Florida to put a limit on age at which a person may be adopted to 18 or show that the relationship is a legitimate parent child relationship and why it is being done if a person is being adopted as a child who is above that age. Then the debate would truly be of everyone being able to adopt children and not side stepping alternate life style marriages not being allowed and seeking to artificially create inheritance rights and in the Maine case without even the knowledge of the grantor. That would merely add to increased Florida Probate Litigation disputes or Florida Trust Litigation challenges. It therefore appears that until the age loophole and allowing anyone to adopt anyone at any age and for any reason that the restriction on adoption that Florida has is a good procedural safeguard to avoid disputed situations like the Maine Litigation which is now shifting to an Inheritance Litigation case in Connecticut arguing over the trust.

The Florida Adoption statute for Florida Inheritance purposes can be read by clicking here.

One final note of interest is that if it had been a revocable trust and the grantor had mental capacity at the time had Olive Watson mentioned the adoption to her father at the time the relationship broke up he could have removed her "child" from his estate plan even if the adoption argument were not successful and it would have avoided litigation before the Maine Probate Judge to challenge the adoption last year or again last week.

Anna Nicole Smith, a former Playboy pinup and stripper, and one of the late oil tycoon J. Howard Marshall's sons have been fighting in court for more than a decade over a fortune estimated as much as $1.6 billion.

The Justices decided by a 9-0 decision that the trust and estate litigation dispute could continue and overturned the 9th circuit court that held the federal court lacked jurisdiction of a probate case.

The justices did not decide how much money Smith would get, if any. Her victory means the case is thrown back to a lower court. She has yet to collect on any part of the disputed estate.

The so-called "probate exception" normally keeps federal courts from hearing such trust or estate disputes, but there is no congressional law mandating the hands-off approach.

"The probate exception does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction," wrote Justice Ruth Bader Ginsburg for the court. She concluded a federal appeals court improperly kept Smith from pursuing her estate litigation case.

Smith's attorneys claim that apart from the will and trust, Howard Marshall promised his young wife a share of assets earned while they were married.

Courts have disagreed

State and federal courts have disagreed over whether Smith should receive any part of the estate.

A U.S. bankruptcy judge initially awarded her $474 million, which later was reduced to about $90 million. A federal appeals court eventually dismissed the entire award.

A state probate court also dismissed her claims, saying E. Pierce Marshall was the sole heir.

"I will continue to fight to clear my name in California federal court," said Pierce Marshall in a statement released shortly after Monday's ruling. "That is a promise that Vickie [Smith] and her lawyers can take to the bank."

The Justices held that the ninth circuit had "no warrant from Congress, or from the decisions of this Court, for its sweeping extension of the probate exception." Link to the Supreme Court opinion

The Trust Litigation and inheritance dispute of Anna Nicole Smith and other high profile cases have been in the news recently. However the past few years have shown a noticeable increase in Inheritance Litigation matters. My Firm has had an increase in calls of clients seeking to contest a Florida will and receive a larger share of the Florida Inheritance by hiring an Estate Litigation Lawyer to insure they receive everything they are legally entitled to.

"We realized many of our lawyers in our trust-and-estate practice were spending a significant amount of time consulting with litigators to help them understand how trusts work," said Jane Godfrey, a co-chair with Leonard, Street and Deinard's new Trust and Estates Litigation practice. "So we thought a combined practice made sense."

The massive transfer in wealth alone is enough to spur more family feuds, Godfrey said. According to an article in the dispute resolution journal $41 Billion between 1998 and 2052. There are many reasons for the increase in inheritance disputes though.

Larger number of subsequent marriages and more children in each family make disputes more likely.

Well-publicized trials also contribute to the rise in demand for estate litigation attorneys.

In the James Binger case, the family disputed the former Honeywell chairman's decision to amend his will two months before he died in November 2004 to give about $40 million to $50 million of his $200 million estate to Jane K. Mauer after his death. Mauer was his family's wealth manager with whom he also had a close personal relationship. The family objected to that gift, arguing that Mauer manipulated Binger into giving it to her. Mauer says that's not true. Dorsey & Whitney attorney Greg Weyandt, a member of the firm's trust-and-estate litigation practice, represented the Binger family.

"I've gotten calls from people who said they read about some other case in the newspaper and it made them think they may have a claim," said Alan Silver, a litigator with Minneapolis-based law firm.